Authority, Process and Method Jewish Law in Context

A series edited by Neil S. Hecht

Volume 1 JUDICIAL DEVIATION IN TALMUDIC LAW Governed by Men, Not by Rules Hanina Ben-Menahem

Volume 2 AUTHORITY, PROCESS AND METHOD Studies in Jewish Law Edited by Hanina Ben-Menahem and Neil S. Hecht

This volume is a joint project o f The Institute o f Jewish Law The Institute for Research in Jewish Law Boston University School of Law Faculty o f Law 765 Commonwealth Avenue The Hebrew University o f Jerusalem Boston, MA 02215 Mount Scopus, Jerusalem Publication No. 24 Publication No. 25

This book is part of a series. The publisher will accept continuation orders which may be cancelled at any time and which provide for automatic billing and shipping of each title in the series upon publication. Please write for details. Authority, Process and Method Studies in Jewish Law

Edited by

Hanina Ben-Menahem Faculty ofLaw The Hebrew University ofJerusalem

and

Neil S. Hecht Boston University School ofLaw Boston, Massachusetts

Boca Raton London New York

CRC Press is an imprint of the Taylor & Francis Group, an informa business First published 1998 by Harwood Academic Publishers Published 2018 by CRC Press Taylor & Francis Group 6000 Broken Sound Parkway NW, Suite 300 Boca Raton, FL 33487-2742

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Visit the Taylor & Francis Web site at http://www.taylorandfrancis.com and the CRC Press Web site at http://www.crcpress.com British Library Cataloguing in Publication Data Authority, process and method : studies in Jewish law. - (Jewish law in context; v. 2) 1. Jewish law I. Ben-Menahem, Hanina II. Hecht, Neil S. 296.1'8 We express our appreciation to Beatrice, Jay and Judith Espovich through whose generosity this volume has been published in memory of The Honorable Norman Espovich

Contents

Acknowledgments ix Introduction xi

1 PRECEDENT IN JEWISH LAW 1 Zerah Warhaftig 2 THE JUDGE-AGENT ANALOGY IN THE TALMUD 33 Hanina Ben-Menahem 3 THE LEGAL STATUS OF THE RESPONSA LITERATURE 59 Berachyahu Lifshitz 4 THE LAW IS IN ACCORD WITH THE LATER AUTHORITY— Hilkhata Kebatrai : Historical Observations on a Legal Rule 101 Israel Ta-Shma 5 ON THE PLACE OF LOGIC (SVARA) IN MAIMONIDES’ CODE 129 Shimshon Ettinger 6 EVASION OF THE LAW IN THE TALMUD 171 Shmuel Shilo 7 INADVERTENT ADULTERY (SHGAGA) IN JEWISH LAW: MISTAKE OF LAW AND MISTAKE OF FACT 231 Moshe Drori

Contributors 269

Acknowledgments

The papers in this volume originally appeared in the following volumes of the Shenaton Ha-Mishpat Ha-Ivri, the annual of The Institute for Research in Jewish Law of The Hebrew University of Jerusalem: chapter 1, vols. 6-7 (1979-1980), pp. 105-132; chapter 2, vols. 9-10 (1982-1983), pp. 51-71; chapter 3, vols. 9-10, pp. 265-297; chapter 4, vols. 6-7, pp. 405-423; chapter 5, vols. 14-15 (1988-1989), pp. 1-30; chapter 6, vol. 8 (1981), pp. 309-355; and chapter 7, vol. 1 (1974), pp. 72-97. Chapters 1-6 were translated by Shmuel Wosner; chapter 7 was trans­ lated by Tzipora Brody. The translations were edited by Nessa Olshansky- Ashtar, who translated the postscript to chapter 4 and assisted us in the onerous task of preparing this volume for publication.

Introduction

Authority; Process and Method: Studies in Jewish Law, the second volume in the series Jewish Law in Context, brings to English-speaking readers a number of seminal articles originally published in Hebrew in Shenaton Ha-Mishpat Ha-Ivri, the annual of The Institute for Research in Jewish Law of The Hebrew University of Jerusalem. The authors were given an opportu­ nity to examine the translations and to update or amend their views; these articles therefore represent their latest positions on the subjects in question. The studies we have included have a general jurisprudential dimension yet exemplify salient features of Jewish law. These criteria reflect the goals that motivate the entire series—to present Jewish law in its own context as well as in the context of contemporary jurisprudence. The series’ inaugural volume, for example,Judicial Deviation in Talmudic Law, explores the theory of adjudication in Jewish law, highlighting its divergence from the positivist model. The following comments do not constitute a summary of the articles. Rather, they point to thematic connections running through the entire volume, especially those arising from the relations between authority, process and method, and allude to some of the broader questions raised. Awareness of the distinctive nature of the decision-making process in Jewish law can contribute significantly to our understanding of its philosophy and historical development. The first four chapters analyze aspects of the decision-making process; each of the last three presents an analysis of a gen­ eral jurisprudential idea as it is conceived in Jewish law. The first article, by Warhaftig, is unique in that in addition to this analysis, it also provides a fas­ cinating perspective on the contemporary relevance of Jewish jurisprudence. It relates some of the dilemmas that confronted the architects of the legal institutions of the State of Israel—among them, Warhaftig—with respect to the question of whether, and how, these institutions should reflect the position of Jewish law on fundamental jurisprudential issues. One such institution is the rabbinical court; the role of contemporary rab­ binical courts in the ongoing formulation of Jewish law is reflected in the chapter by Drori, discussed below. The history of the responsa literature, briefly addressed by Warhaftig in explaining the decision to publish the Xli INTRODUCTION

rulings of the rabbinical courts, is explored in greater detail by Lifshitz, who analyzes that genre in chapter 3. Another of the legal institutions, the merits of which were much debated, is the doctrine of binding precedent, the main focus of Warhaftig’s article. Warhaftig argues that not only is binding precedent not recognized by Jewish law, it is fundamentally at odds with the notion of decision-making under­ lying Jewish law. While Jewish legal thinking places great weight on the decision-making process, examination reveals that although the importance of judges’ being informed by the relevant prior considerations and policies is emphasized, their deliberations and conduct in deciding particular cases are not restricted. They are to exercise judgment independently, basing their deci­ sions on the facts of the cases before them and on the law as they understand it. It is thus the absence of the doctrine of binding precedent, rather than, as might be expected, its endorsement, which attests to the respect accorded the decision-making process in Jewish law. Further, it would appear that to a great extent the perennial vitality of that process can be attributed to the rejection of binding precedent. Indeed, the very concept of binding precedent is problematic. We are all familiar with the notion that previous cases may be distinguished in a variety of ways. Yet, if a precedent can be ignored by a judge who chooses to distin­ guish it, in what sense is it binding? Recent studies have suggested that the importance of the doctrine of binding precedent lies in cases where the judge chooses to follow a prior decision, because the court, by citing the doctrine, is able to present its decision as necessitated by pre-existing legal decisions, thereby minimizing criticism and resistance from the losing party. On this understanding, then, the doctrine of binding precedent is construed as a fic­ tion intended to bolster the court’s authority. That Jewish law does not subscribe to the doctrine of binding precedent is particularly significant from this perspective. Apparently, the fact that judges attain their position by dint of their personal moral stature and status as guardians of a valued tradition, and function not only as adjudicators but also as esteemed teachers and communal leaders, obviates the need for jurists to resort to the rhetorical device of binding precedent to advance the authori­ ty of the legal system. The second chapter, by Ben-Menahem, analyzes the status of the judge vis-à-vis the parties and society at large, and the basis of judicial authority. After examining the thesis that the judge’s role is modeled upon that of the agent, he argues that this analogy is problematic and should be understood INTRODUCTION xiii more as a metaphor than as entailing actual legal consequences. In talmudic legal thought, the use of familiar legal institutions to explain more complex relations is not uncommon, despite the fact that such recursive explanation itself raises questions. The phenomenon is best understood in terms of the Talmud’s inclination to avoid grounding legal institutions in legislative stipu­ lation (ex lege) and, where possible, to prefer instead their derivation from more fundamental legal concepts. The status of a halakhic decision must be explored not only in terms of its future precedential status, but also with respect to the degree to which it is binding on the parties to the dispute that prompted it. The third chapter, by Lifshitz, considers the distinction between a binding legal decision and a legal opinion issued solely as guidance to the parties involved. This distinction is particularly relevant in analyzing the status of the responsum as a vehicle for legal decision-making. Lifshitz argues that the status accorded the respon­ dents’ rulings varied directly with the respondents’ authority relative to that of local judges, an interesting example of the interplay between power and process. Ta-Shma, in the fourth chapter, provides a different perspective on the question of precedent and judicial autonomy, by tracing the historical devel­ opment and shifts in meaning of the principle that “the law follows the later authority.” This principle establishes a central tenet of decision-making in Jewish law. In the second part of the volume, the first concept examined is that of legal logic, which Ettinger discusses in chapter 5. Ordinarily, logic (svara) is conceived of either as a source of law or as a means of interpreting given sources. Ettinger’s article, however, explores another use of the concept, prominent in the works of Maimonides, namely, logic as a means of choosing between various sources to decide the law. Another general jurisprudential concept frequently encountered in Jewish law is that of permissible evasion of the law, examined by Shilo in chapter 6. The pervasiveness of this phenomenon invites speculation as to factors that may have prevented the achievement of the same ends by legisla­ tive means. It is possible that the method of permissible evasion of the law was preferred due to ethical considerations. Evasion condoned by the Sages to mitigate the law’s harshness in effect generates two levels of conduct: con­ duct prescribed by legal norms, and conduct sanctioned by permissible eva­ sion of these norms. This bifurcation is not unknown in Jewish law, which establishes an elaborate system of moral aspirations alongside its normative XIV INTRODUCTION injunctions in order to provide individuals with an opportunity to express their autonomy as moral agents and thereby enhance their moral develop­ ment. (We have examined this issue in detail in Ben-Menahem and Hecht, Selected Topics in Jewish Law, vol. 3, Law and Equity (1993).) Permissible evasion of the law, by providing individuals with an oppor­ tunity to forgo evading the law and instead choose to follow the law proper, may constitute yet another avenue for the exercise of such moral autonomy. This idea is nicely captured in the following talmudic passage: “Come and see that the later generations are not like the earlier generations. The earlier generations brought their produce home through the front door in order to be obliged to give tithes. The later generations bring their produce home through roof-tops and courtyards and backyards in order to be exempt from tithes” (bBerakhot 35b). In the final chapter, Drori explores the subject of inadvertent adultery in Jewish law, touching upon another characteristic feature of Jewish law— recognition of the legal defense of ignorance of the law. The talmudic princi­ ple of forewarning stipulates that no offender can be punished until the court is satisfied that the violation was willful. This principle applies to all trans­ gressions of criminal and ritual law. Generally, other legal and social conse­ quences of a violation do not apply if punishment is not meted out due to the offender’s ignorance of the law. However, Drori demonstrates that in the case of adultery committed in ignorance of the law, these other consequences do indeed apply. He attempts to explain this unusual treatment of adultery in Jewish law by distinguishing two aspects of criminal offense in Jewish law: the divine aspect, and the societal. While, in the former sphere, ignorance of the law constitutes an acceptable excuse, with regard to acts that have societal repercussions, inadvertent violation due to ignorance is considered tanta­ mount to deliberate transgression, and treated accordingly. That is, ignorance of the law is indeed a legitimate excuse in Jewish law, but only in the realm of the divine. In matters human, in Jewish criminal law, as in Western law, “ignorance of the law is no excuse.” We expect readers to benefit greatly from the scholarship and insight of these studies; we also hope that they will enjoy this encounter with the unique texture of original Hebrew scholarship.

Hanina Ben-Menahem Neil S. Hecht Jerusalem Boston CHAPTER 1

PRECEDENT IN JEWISH LAW

Zerah Warhaftig

1. Binding and Guiding Precedent 2. The Role of Precedent in Roman Law and Common Law 3. Precedent in Israeli Law 4. Previous Decisions and Precedent in Jewish Law i. The Significance of Actual Rulings ii. Publication of Responsa iii. Publication of Rabbinical Court Decisions in Israel 5. Precedent in Jewish Law - Guiding Precedent 6. Arguments against Implementation of the Doctrine of Binding Precedent in Jewish Law i. Apprehension about Error ii. Judicial Independence iii. The Judge’s Duty to Hand Down a Ruling 7. Precedent and the Relationship between Israel’s Rabbinical High Court of Appeal and District Rabbinical Courts1

1. Binding and Guiding Precedent

Court rulings, particularly those handed down by supreme courts, can pro­ vide invaluable information about a legal system and its implementation in practice. They are a source of instruction, guidance, and perhaps even direc­ tion for courts and judges alike. However, the weight to be accorded judicial precedent has been universally problematic since ancient times. What is the status of precedent with regard to similar cases that follow - is it binding or just a guide? Both views can be argued for convincingly. On the one hand, endowing a legal ruling, particularly that of a supreme court, with binding power, contributes to the unity of law. It ensures a degree 2 AUTHORITY, PROCESS AND METHOD of protection against a situation where each court decides idiosyncratically, yielding an unruly miscellany of opinions and principles. The Talmud con­ demns such a state of affairs: “Do not form separate factions or rival groups.”1 Similarly, endowing precedent with binding force contributes to legal stabil­ ity, the preservation of legal tradition, and certainty in the interpretation of the law. The parties to a case can predict its outcome with a fair degree of confi­ dence, and individuals can conduct their affairs so as to avoid litigation. On the other hand, mandating that precedent be followed has many disad­ vantages. It prolongs or perpetuates judicial error, which tends to entrench itself with each subsequent ruling; it greatly reduces judicial flexibility and devalues the judge’s personal outlook on the law and how it should be under­ stood and interpreted against a background of changing circumstances. It detracts from judicial independence of thought and analysis and makes the judge a slave of established patterns: an automaton mechanically deducing foregone conclusions. Binding precedent makes legislators of judges and often causes judges in lower courts to decide against their better judgment and moral intuition. They are obliged to decide the case in accordance with the binding precedent even if it conflicts with their own understanding and interpretation of the law. The judge is thus in effect answerable to two legislators, one of which, the supreme court, in its capacity as supreme legislator, has the final word.

2. The Role of Precedent in Roman Law and Common Law

Precedent was unknown as a source of binding law in Roman law. Judges (iudices) were ordinary citizens, generally without any legal training,1 2 and their rulings (iudicata) were not considered official sources of law.3 Although Cicero refers to the opinions of legal experts and works on legal matters as binding sources of Roman law, this is not as momentous as it sounds - rul­ ings were binding only for the cases in which they were handed down.4 Court decisions were not published.5

1 bJebamot 14a; jPesahim 4:1, 26a, (4:1, 30d), on the basis of exegesis of Deut. 14:1. 2 Y. Pokrovsky, Toldot Hamishpat Haromai (Jerusalem: 1928), pp. 114-115; C.K. Allen, Law in the Making (Oxford: 1964), pp. 168-169. 3 Justinian, Institutes, I. II, 3. 4 Allen, op. cit. (note 2 above), pp. 163-164. 5 Ibid., pp. 169-170. PRECEDENT IN JEWISH LAW 3

The Codex Justinianum (533 CE) explicitly states that courts must not decide on the basis of similar cases, but on the basis of the law,6 and theInstitutes cau­ tions judges to decide “on the basis of the law, the constitution and custom.”7 The jurist Callistratus, quoted in Justinian’s Digest, reports: “Our emperor Severus ordered that when the law is ambiguous, the prevailing interpreta­ tions, as expressed in decisions of recognized authorities on similar matters, acquire the force of law.”8 However, he is the only authority to voice this opinion, and does so with respect to a specific problem, namely, how to inter­ pret an ambiguously-worded law. His solution is to recognize only those interpretations that recur regularly.9 Roman law recognizes the importance of learned legal opinionresponsa - prudentium, and under the rules of Augustus and Hadrian, certain well- known jurists were awarded the ius respondendi, or authority to prepare writ­ ten opinions on cases being tried. These documents, signed and stamped with their authors’ seals, were known as responsa signata, and the opinions they expressed were binding for the particular cases at hand. The importance of these responsa lies in their influence on legal thought. Some of the official jurists published compilations of their decisions, knownopiniones as or sen­ tentiae, which greatly enriched the legal literature.10 Most modem legal systems, particularly those based on Roman law, have not adopted the principle of binding precedent to any extent.11 However, binding precedent does characterize Anglo-American law, derived, as it is,

6 Non exemplis sed legibus iudicandum est. Codex VII, 45.13. 7 In primis illud observare debet iudex, ne aliter iudicet , quam legibus, aut consti­ tutionibus aut moribus proditum est (IV. XVII, 1). 8 Nam imperator noster Severus rescripsit in ambiguitatibus quae ex legibus proficiscuntur consuetudinem, aut rerum perpetuo similiter iudicatarum auc­ toritatem, vim legis optinere debere. D. 1.3. 38. 9 Allen, op. cit., pp. 173-174; G. Tedeschi, “AI Hilkhat Hatakdim Hamehayev,” in Mehkarim Bemishpat Artzeinu (Jerusalem: 1959), p. 100. 10 W.W. Buckland, A Textbook of Roman Law (Cambridge: 1932), pp. 21-25; Pokrovsky,op. cit. (note 2 above), pp. 145-146; Tedeschi, op. cit., pp. 94-95. 11 H.C. Guterridge, Comparative Law (Cambridge: 1946), pp. 113-114; J. Salmond, Jurisprudence (London: 1957), pp. 141ff.; Allen, op. cit., pp. 178-186; Tedeschi notes that in three countries, Hungary, Portugal and Argentina, the doctrine of binding precedent is accepted to some degree (op. cit., p. 99). Cf. Civil Appeal 815/75 Leibensohn-Stein et al. v. Authority for the Law for those Disabled through Nazi Persecution, P.D. 32(3), p. 275: “In Germany even a ruling of a high court does not create a binding precedent for that court or for lower courts.” 4 AUTHORITY, PROCESS AND METHOD from common law, which was generated from rulings inductively on a case by case basis.12 In case law of this kind, facts create the law - ex facto oritur ius. English law is the model of stare decisis,13 law distinguished by consis­ tent and stable rulings. The English system spread to all the countries where common law is prac­ ticed, and today the principal feature differentiating English and American law from other modem legal systems is the decisive influence of precedent in shaping the law.14 Cardozo noted that“stare decisis is at least the everyday working rule of our law.”15 There has been much discussion recently in the United States about weakening the principle of binding precedent, but it still has a strong hold on the American judicial system.16

3. Precedent in Israeli Law

During the British Mandate period, the doctrine of binding precedent was adopted by the courts in Mandatory Palestine as a matter of course, both with regard to precedents set by local courts, and those set by British courts. The principle of binding precedent became part of the legal system by force of article 46 of the Palestine Orders in Council 1922-1947. Though not without misgivings, this state of affairs continued after the establishment of the State of Israel, until a bench of five judges handed down a supreme court ruling formally adopting the principle of binding precedent in its entirety.17 This ruling was later interpreted as follows: “It is clear and beyond doubt that the court unconditionally upheld English law in the matter of the binding power of precedent.”18 A lone dissenting opinion, opposed to the absolute nature of the ruling, was rejected.19

12 Allen, op. cit., pp. 161-162. 13 J. Salmond, op. cit., (note 11 above), esp. pp. 174ff. 14 Edwin W. Patterson, Jurisprudence (New York: 1953), p. 300. 15 Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven: 1921), p. 20. 16 Edward D. Re, Stare Decisis, Federal Judicial Center, (Washington D.C.: 1975). 17 High Court of Justice 287/52; 34/52; 324/52, Ram et al. v. M inister o f Finance, P.D. 8, p. 494. 18 Opinion of Justice Vitkon in High Court of Justice 176/54, Nahum Yehoshua v. Board of Appeal for the Law of the Disabled and Others, P.D. 9, p. 624. 19 See High Court of Justice 176/54 cited above; cf. Tedeschi, op. cit. (note 9 above), pp. 110,114,128. PRECEDENT IN JEWISH LAW 5

Afterwards, however, it was decided that the question of the status of the precedent principle should be dealt with legislatively. Clause 41 of the pro­ posed Bill of Law Courts - 1955, declared: “All courts are bound by the rul­ ings of higher courts.”20 Explanatory notes to the clause added: “This law does not settle in principle the issue of binding precedent, i.e., the question of the extent to which a court — and particularly the Supreme Court - is bound by its own prior decisions. This question will remain legislatively unresolved, and its solution is to be sought in the realm of the judiciary; nevertheless, the rule that a lower court is bound by the decision of a higher court has gained such a degree of acceptance, and is so established today, that it is possible, and desirable, to promulgate it as law.”21 Debate on the proposed law began in the second Knesset,22 but it did not receive a second and third reading. The Bill of Law Courts was put forward again at the third Knesset,23 with some modifications.24 In the ensuing debate, in November 1955, I opposed the clause, on the grounds that the notion of binding precedent was an English concept that we had adopted despite the fact that it was incompatible with the principles underlying traditional Jewish legal thought. I explained that to my mind bind­ ing precedent was an undesirable means of turning judges into lawmakers. Further, I argued that it might induce judges to circumvent existing law. I also expressed concern about binding precedent in view of the fact that the courts’ purview at times extends to adjudication of cases involving questions of halakha. Erroneous rulings in such cases would be tantamount to erroneous halakhic rulings, which, in turn, would become binding precedent for other courts. I suggested that it would be better to view precedent as guiding, rather than determining, future rulings.25

20 Proposed Law 226,1956, p. 70. 21 Ibid., p. 70. 22 Divrei Haknesset Hashnia, vol. 17, pp. 709ff, 718ff, 736ff. 23 Divrei Haknesset Hashlishit, vol. 19, p. 316. Although the proposal was tabled on October 12, 1950, a different date is given for the event on p. 289 (November 14, 1955). 24 Some of the modifications were noted by Minister of Justice P. Rosen, ibid., p. 329. 25 Ibid., p. 322; cf. remarks by Knesset Member Zalman Ben-Yaakov in D ivrei Haknesset Hashnia, vol. 17, p. 722. 6 AUTHORITY, PROCESS AND METHOD

The Knesset legal committee suggested that some qualifications regarding the power of precedent were indeed called for and recommended that clause 33 of the proposed law read as follows: a. Courts will be guided by rulings of higher courts. b. Rulings of the Supreme Court are binding on all courts other than the Supreme Court. c. Rulings of the Supreme Court handed down by a bench of five judges are also binding on the Supreme Court.

I expressed my reservations about the proposal on the Knesset floor, and suggested it be qualified in two ways. First, I argued that clause 33 should be omitted, for a number of reasons. I reiterated my objections to the doctrine of binding precedent: it might perpetuate erroneous rulings; mislead judges into false analogies; reduce the flexibility of legal decisions in the context of changes in commerce and business arrangements; and discourage indepen­ dent legal reasoning on the part of judges. Without denying the advantages of the precedent system, I noted that the whole matter of the role of precedent should be left to the discretion of the courts rather than defined by legislation. Legislating the status of precedent amounts to endorsing one ruling for all similar cases, effectively making a legislator of the judge who handed it down. This, in turn, would undermine the division of authority between the judicial and legislative branches and could ultimately damage public confi­ dence in adjudication. I went on as follows:

Whatever our position on the question of binding precedent, one thing is clear: determination of the status of precedent is a concern of the courts. Just as one should not confuse the written word with the spoken word, so too there should be no confusion between law and legal precedent. About a year ago, the Supreme Court ruled that its decisions are binding, not only on lower courts, but also on the Supreme Court itself. This ruling does not worry me, because it is conceivable that though the Supreme Court indeed ruled in favour of binding precedent, it may at some point in the future be persuaded of its error in so doing. In any event, this is possible only as long as it falls under the courts’ purview. But if we pass a law that rulings of the Supreme Court are binding both on lower courts and on the Supreme Court itself, we are in effect transforming the rulings of the Supreme Court into law. If this bill becomes law, should the Supreme Court decide an issue erroneously, its ruling will nevertheless be law, and there will be no remedy but to turn to the legislature and go through the process of changing it. This would turn the Supreme Court into a second legislative assembly. I do not think it advisable for the Knesset to relinquish its legislative prerogative. The clause, as it stands, delegates a unique legislative power to the Supreme Court, PRECEDENT IN JEWISH LAW 7

giving it the power to change any law enacted by the Knesset simply by inter­ preting it incorrectly, even if the error is obvious. I believe that this clause, if passed, will petrify precedent and render a disservice to our legislation.26

Together with Y. Harari, I also proposed deletion of the third sub-clause, (c), on the grounds that the Supreme Court’s authority to render an indepen­ dent decision should not be limited in any way.27 My first qualification - omission of section 33 - was rejected.28 On the other hand, the Warhaftig-Harari amendment on sub-section (c), was passed.29 Clause 33 of the Law of Courts 5717-1957, became law. It reads:

a. Courts will be guided by rulings of higher courts. b. Rulings of the Supreme Court are binding on all courts other than the Supreme Court.30

The scope of binding precedent as understood and applied by the courts up to that point - as is clearly reflected in the decision of the Supreme Court in the Ram case31 - was thus significantly reduced by the final version of clause 33, which freed the Supreme Court from the obligation to rule in accord with its previous decisions. The main contribution and innovation32 of clause 33 lies in the fact that the binding status of precedent, and the very significant limitation on it, is articu­ lated legislatively. The legislature limited its own purview by extending that of the Supreme Court, which was granted tremendous legislative authority. Clause 33 also establishes two classes of judges: the few who have the authority to interpret laws and render judgment independently, and all the

26 Divrei Haknesset Hashlishit, vol. 22, p. 2492. 27 Ibid., pp. 2495-2497. 28 Ibid., p. 2498. The first vote was a 16:16 tie, and a majority of 18:16 against the amendment was reached only on the second vote. 29 Ibid., p. 2497. 30 Sefer Hahukim 233,1957, p. 152. 31 See note 17 above. 32 In England and the United States stare decisis is based on court rulings, and has no basis in the constitution or in law. In Portugal and a few Latin American countries, such as Argentina, legislation or the constitution is used to establish that courts are bound by supreme court decisions. However, this dependence usually obtains only in cases where the ruling recurs a number of times. In Mexico, for example, it comes into force only if a ruling has been handed down five times. See Tedeschi, op. cit. (note 9 above), p. 99. 8 AUTHORITY, PROCESS AND METHOD rest, whose authority to engage in independent legal analysis is restricted by clear subordination to the rulings of the Supreme Court.33 The sole authority they retain is the authority to compare and contrast different cases - to decide whether or not the matter before them is comparable to a situation covered by an existing decision of the Supreme Court. The law was received by the judiciary with doubt and apprehension, partic­ ularly on the part of judges presiding over district courts.34 The justices of the Supreme Court, on the other hand, generally greeted it with understanding and approval. This attitude is reflected inLapidot Israel Petrol Co. Ltd. and Others v. Shlisser.35 The bench of five justices declared that the Supreme Court, though not legally bound by precedent, was not in the habit of deviat­ ing from earlier decisions; however, with regard to any ruling issued routinely, without deliberation, it was the Supreme Court’s responsibility to evaluate whether it was proper to continue in this direction in the future. The Supreme Court chose moderation with regard to reversing rulings it had handed down previously, arguing that judicial tradition and legal stability ought to be maintained. Justice M. Silberg declared candidly, “I do not disregard the decisions of earlier authorities.”36 At the same time, the Supreme Court does not hesitate to deviate from an earlier ruling it regards as erroneous.37 Justice M. Landau found it objectionable that the status of precedent in the legal system was being defined legislatively - “Personally, I find Clause 33 of the law courts bill altogether unnecessary.”38

33 See A. Hecht, “Hazika Letakdim”, in Mehkarei Mishpat Lezekher Avraham Rosenthal (Jerusalem: 1974), pp. 162, 168,175. 34 See G. Tedeschi, “Olelot Bedivrei Hatakdimim,” Hapraklit 17 (1961), p. 244; Hecht, op. cit., p. 172. 35 Additional Hearing 14.68, P.D. 23(1), p. 771. 36 Civil Appeal 476/65, Rinat v. Rinat, P.D. 20(2), p. 25, under “Alef.” 37 Civil Appeals 606/73,126/74, Yardenia Ltd. v. Ofer Brothers Ltd.; Port Authority v. Ararat Ltd., P.D. 30(8). The comment of Justice Etzioni is noteworthy: “I have the honor of being the first to deviate from English law, according to which, in matters of damages, what counts is the date damages were inflicted rather than the date of sentencing” (p. 42, under “A lef”). He then quotes from a ruling he himself handed down as a district court judge. 38 M. Landau, “Halakha Veshikul Daat Beasiyat Mishpat,” Mishpatim 1 (1969), p. 295. Landau’s view is as follows: “If that which may be termed ‘judicial leg­ islation’ indeed exists, then in functioning as secondary legislatures, the courts should enjoy autonomy and the freedom to define for themselves the manner in which they will legislate, for they are responsible for the adequacy of the legis­ lation thus generated” {ibid.). PRECEDENT IN JEWISH LAW 9

Justice H. Cohn mentioned a number of principles that inform Supreme Court policy on earlier rulings. The accepted practice is not to utilize the license to deviate from precedent, even if the court disapproves of the ruling as it stands. In Cohn’s opinion, however, this policy applies chiefly to prece­ dents pertaining to the determination of judicial jurisdiction or procedure, areas in which stability and certainty are of utmost importance. “If deviating from precedent is likely to obstruct justice, and any benefit accruing from it will be purely academic, it is preferable to stay on the beaten track of prece­ dent.” However, he goes on to say that it is quite another matter if the court is of the opinion that a past decision could bring about injustice, either because circumstances have changed, or because it was mistaken from the start.39 To support his position, Cohn cites several sources from Jewish law, including Piskei Harosh.40 These remarks echo views expressed in a lecture entitled “The Problem of Precedent in Jewish Law,” which Cohn delivered at the College of Law and Economics in January 1957.41 In support of my reservations about clause 33 during the Knesset debate, I too appealed to Jewish law. The remainder of this article will consider the position of Jewish law on the question of the role of precedent.

4. Previous Decisions and Precedent in Jewish Law i. The Significance of Actual Rulings

Jewish law is basically statutory law. It is regarded as divine in origin - “For the judgment is God’s”;42 “For all His ways are justice.”43 Man does not create the law; he reveals it. The task of earthly judges, in the words of Isaiah, is to “learn to do well; seek justice,”44 i.e., to study the sources, dis­ cover the fundamental principles underlying them, and decide in accordance with them, in order to administer “justice and righteousness.”45 The purpose

39 Additional Hearings 39/75, 41/75, Port Authority v. Ararat Ltd. et al.; Ofer Brothers v. Port Authority et al., P.D. 31(1), p. 535. See H. Avnor, “Sidrei Hadin: Hatzedek Vehamediniyut,”Hapraklit 32 (1980), p. 478. 40 Cohn, op. cit., p. 537, citing Piskei Harosh, Sanhedrin 4:6. 41 Published in Mishpat Vekalkala 3, 3 (March 1957), pp. 129-141. The Rosh is cited on p. 136. 42 Deut. 1:17. 43 Deut. 32:4. 44 Isaiah 1:17. 45 I Kings 10:9. 10 AUTHORITY, PROCESS AND METHOD of the law is to administer justice and equity on earth,46 “for right shall return unto justice.”47 Divine law was handed down as the written law, the Torah, but “all the laws given to Moses on Sinai were given with their explanations... and Moses did not commit to writing the commandments which are an explana­ tion of the Torah, but charged [them] to the elders and to Joshua and to the rest of the nation orally... and for this reason they are called the oral law... and it was repeated to the Sages publicly and revealed to all Israel and they committed it to writing.”48 The solution to every problem should be sought, and can indeed be discov­ ered, in the written and oral law, the Mishnah and the Tosefta, the Midreshei Halakha, the Babylonian Talmud and Jerusalem Talmud, and the halakhic lit­ erature. Unlike Roman law, Jewish law attributes great significance to judicial facts: previous decisions handed down on a given issue. The actual imple­ mentation of the law leads to its theoretical clarification. Indeed, the talmudic literature takes note of the critical importance of actual rulings and their implementation: an actual ruling is authoritative;49 an actual ruling is more weighty;50 application of the law is greater than studying the law;51 what has been done is no longer open to discussion;52 the Elder [R. Jose] has already ruled;53 had the case come before him he would have been more punctilious;54 he saw the act and recalled the law;55 did you ever rule on such a case?;56 behold day-to-day practice;57 5958 we learn from everyday practice.58,59

46 Jeremiah 9:23. 47 Psalms 94:16. 48 From Maimonides’ introduction to the Code. 49 bShabbat 22a, Rashi ad loc. s.v. maase rav; bBaba Batra 130b; bNida 65b; cf. Rabbenu Hananel on Shabbat 49b, and Tosafot ad loc. s.v. aba salha. 50 bBaba Kama 83a. 51 bBerakhot 7b, bTemura 16a. 52 bRosh Hashana 29b. 53 bShabbat 51a, bJebamot 105b, bSanhedrin 24a, 29b. 54 Rashbam, bBaba Batra 83a s.v. umar savar maase rav. 55 bPesahim 66a. 56 bBeitza 9b. 57 bSuka 44a; bKetubot 68b, 95b, Rashi ad loc. s.v. veha maasim bekhol yom; bBaba Kama 95b; bBaba Batra 173b. 58 Tosafot, Shabbat 48a s.v. mai shna mimeiham. 59 For more on actual rulings in Jewish law, see M. Elon, Jewish Law, (Philadelphia and Jerusalem: 1994), vol. 2, pp. 945ff. PRECEDENT IN JEWISH LAW 11

An important feature of the practice of law is judicial expertise. Unlike the Roman system, in which laymen acted as judges, Jewish law mandated that judges be trained and officially authorized legal experts,60 for, as administra­ tors of divine law, they had to be masters of their craft.61 ii. Publication of Responsa

There are no official compilations of court rulings or proceedings in Jewish law, but case histories and decisions are found informally in both the Jerusalem Talmud and the Babylonian, the Midreshei Halakha, Tosefta, and other halakhic works.62 The thousands of volumes of published responsa are a veritable treasure trove of halakhic rulings.63 These are sometimes indexed, and recently several scientific indexes to the responsa literature have been compiled.64 One hundred and fifty volumes of responsa, containing thirty-five thousand individual rulings, have been computerized, facilitating speedy access to the judicial decisions therein.65 These works contain responses on a wide variety of subjects, and their nature and style vary with the period during which they were written. Collections of responsa from the Geonic period generally contain legal rul­ ings with only the briefest of explanations, and sometimes with no explana­ tion at all. The responsa of the Early Authorities are more detailed, while many responsa of the Later Authorities include extensive explication and dis­ cussion of the laws in question. Often, responsa are written by rabbis and community leaders regarding cases whose litigants did not appear before them; such responsa tend to be expository in nature, focusing on clarification

60 Deut. 16:18, Exod. 22:7-8, bSanhedrin 56b. 61 Exod. 18:21; bSanhedrin 2a, 5a; jSanhedrin 1:1; Maimonides, Code, Laws Concerning the Sanhedrin, 1,2; Tur and Shulhan Arukh, Hoshen Mishpat, secs. 1,2. 62 Elon, loc. cit. (see note 59); E.Z. Melamed, “Hamaase Bemishna Kemakor Lehalakha,” Sinai 46 (1960), pp. 152-166. 63 Cohen, B. Kuntras Hateshuvot (Budapest: 1930; reprinted Jerusalem: 1970); Elon, op. cit., vol. 3, pp. 1453-1528. 64 The Hebrew University’s Institute for Research in Jewish law published a detailed index to the responsa of R. Asher b. Jehiel in 1970, and subsequently published legal indexes and source indexes to the responsa of Spain and north Africa. A number of indexes have also been published by Bar Ilan University’s Institute for Research on Oriental Jewry. 65 The responsa project was carried out by the Institute for Data Processing and Cognitive Linguistics at Bar Ilan University. 12 AUTHORITY, PROCESS AND METHOD of the relevant laws, rather than rulings proper. Sometimes the writer empha­ sizes that his work is only intended as a theoretical elucidation of the matter and should not be construed as a decision intended for implementation.66,67 Many responsa deal with actual cases which were adjudicated by the respondent, but written up later; they do not record the decisions as handed down at the time of the adjudication, but instead analyze the cases retrospec­ tively for future reference. However, there are also collections of responsa containing rulings signed by courts of three judges.66 6768 Other rulings handed down by such courts are preserved in community records.69 Finally, exposi­ tory works on halakhic matters sometimes formulate hypothetical questions on thorny points, then proceed to answer them.70 iii. Publication of Rabbinical Court Decisions in Israel

An important innovation in the history of the responsa literature was inau­ gurated in Israel with the decision to publish the rulings of the Rabbinical High Court of Appeal and those of the district rabbinical courts. The rulings are published together with the arguments on which they are based, as pre­ sented in court. Indeed, I myself proposed the publication project, and was charged with its implementation, a responsibility I viewed as a great privilege and sacred trust. Previously, the Rabbinical High Court of Appeal followed the traditional system of issuing brief rulings while at the same time compiling a full account of the halakhic deliberation on the case in pamphlet form for circula­ tion among judges. Deliberation and discussion are an essential part of the legal process, allowing the individual judges an opportunity to convince their colleagues of the validity of their arguments, so that a decision can be

66 Rashba, Responsa Attributed to the Ramban #112, #222; Tashbetz, part 1, #85, part 2, #5; and many like these. 67 See E. Shochetman, “Hovat Hahanmaka Bemishpat Haivri,” Shenaton Hamishpat Haivri 6 -7 (1979-80). 68 E.g., R. Samuel Di Modena (Maharashdam), Responsa , Even Haezer #27, #43, #60; R. Isaiah Basan, Lahmei Toda #31. 69 Israel Heilpren, Pinkas Vaad Arba Aratzot (Jerusalem: 1945), see index listing rulings, pp. 567-568; Moetzet Harabanim Bemorocco, Haaseifa Hashnatit Hashlishit (Proceedings of the Rabbinical Council of Morocco), (1950), pp. 3 0 -3 1 , and many others. 70 R. Israel Isserlein, Terumat Hades hen, part 2, Pesakim Uktavim, quoted in R. Shabbetai Cohen (Shakh) on the Shulhan Arukh, Yore Deia, sec. 196, par. 20. PRECEDENT IN JEWISH LAW 13

reached. The pamphlets were intended to facilitate this process, rather than to explain the rulings to the litigants involved, so that they could understand why they had won, or lost, their cases.71 There was no appeal against a ruling of the Rabbinical High Court, nor were there established procedures for appealing the rulings of district rabbinical courts. (Interestingly, these pam­ phlets often served as the basis for volumes of responsa published by their authors years later.72) The idea of publishing, in an organized fashion, both the courts’ rulings and their grounds, and that of appending abstracts of the laws cited in the rul­ ings, as is customary in law reports, to allow for ease of reference and study, was thus entirely new. Accordingly, the Chief Rabbinate, which had to approve the proposal, had to be convinced of its merits. This entailed some negotiation, in which, as head of the Ministry of Justice’s Research Institute for Jewish Law, I was much involved. In due course an agreement in principle was reached between myself and the Chief Rabbinate.73 After some administrative changes were carried

71 Cf. bSanhedrin 33b. Also see Shochetman, loc. cit. 72 E.g., the responsa of R.A.I. Kook, Ezrat Kohen - Teshuvot Behilkhot Even Haezer (Jerusalem: 1969) and Orah Mishpat (Jerusalem: 1979); and the following responsa: R. Yosef Zvi Halevi, Amira Neima; R. Benzion Hai Uziel, Mishpetei Uziel; R.I. Herzog, Heikhal Yitzhak; R.A. Hadaya, Yaskil Avdi; R.M. Roth, Kol Mevaser; R. Ben-Menahem, Divrei Menahem; R.E. Waldenberg, Tzitz Eliezer, R. Ovadia Yosef, Yabia Omer; R. Werner, Mishpetei Shmuel; R.Y. Aaronow, Divrei Yehoshua; and others. 73 Due to its historical importance, it is appropriate to quote the full text of the agreement between the Chief Rabbinate and myself:

A special session at the home of R.I. Herzog, under the chairmanship of Chief Rabbis I. Herzog and Benzion Uziel, held on Sunday, the third day of Adar 1948. Those present: Dr. Zerah Warhaftig, R. Dr. S.Z. Cahana, Dr. S.B. Feldman, R. Weber, first secretary, and M. Lebanon, legal advisor. Dr. Warhaftig has proposed publishing the rulings of the rabbinical courts under the editorship of R.S.Z. Cahana and Dr. Feldman with the assistance of the first secretary, R. Weber, and the legal advisor, Mr. Lebanon. R. Weber pointed out the difficulties in the publication of rulings the rationales for which have thus far only been articulated in lengthy pam­ phlets. Some rabbinical judges involved object to publication because their rulings are not immediately comprehensible; furthermore, publication of the rulings would require a standardized format, something outside the province of the editors. Mr. Lebanon suggested that before discussing 14 AUTHORITY, PROCESS AND METHOD out,74 the first collection of rulings of the Chief Rabbinate’s Rabbinical High Court of Appeal was finally published in 1950. Assisted by S.B. Feldman, S.Z. Cahana, and P. Galevsky, I served as editor. In the foreword to the vol­ ume, I wrote:

The selection of the rulings herein published was guided by the desire to accu­ rately portray the workings of the Court. Most of the rulings relate to family law and public endowments; the others are devoted to monetary matters. The opin­ ions of the judges, with a few exceptions, are not published as written, but have been abstracted by the editors from the contents of the pamphlets appended to the case files. This volume thus does not constitute a formal record and the editors assume full responsibility for the adaptation and wording of the judicial opinions.

The collection contains fifty rulings on matters of consequence, set out and worded as clearly as possible. The principal facts are presented succinctly, the conclusions unambiguously. It thus provides jurists and scholars with access to the world of the rabbinical courts and the methods by which they reach their decisions. It was found that publication encouraged rabbinical court judges to com­ municate their opinions in a clear and orderly manner comprehensible to those unschooled in Jewish law, whether jurists or members of the public. Over time, rulings of the Rabbinical High Court of Appeal and the district rabbinical courts began to be handed down in a form that allowed them to be

adaptation of the pamphlets, the proposed editors familiarize themselves with the material by reading a number of pamphlets. Dr. S. B. Feldman stated that it appeared he would have to edit the factu­ al material and R. Cahana, the halakhic material. Dr. Warhaftig pointed out that this would not be an official report, hence there was no need to be too pedantic, and that only a selection of cases would be published. Rulings that could be omitted would not appear. He suggested that a number of files be provided to R. Cahana and Dr. Feldman; and that once they had considered them, the five of them could reconvene and proceed from there. The proposal was accepted and it was decided to hold another meeting the following Tuesday at the office of first secretary R. Weber. Signed, I. Halevi Herzog, Benzion Meir Hai Uziel.

74 The first secretary of the Chief Rabbinate, R. Weber (Shazori) of blessed mem­ ory, and the legal advisor, M. Lebanon, withdrew from the project, apparently believing it would not succeed. PRECEDENT IN JEWISH LAW 15 published as written, with no editing. Accordingly, it was decided to publish the rulings of the district rabbinical courts, and later, those of the Rabbinical High Court of Appeal, on a monthly basis. In my foreword to the first volume of rulings of the district rabbinical courts, I remarked on its significance:

This first volume of rulings of the district rabbinical courts marks the inaugura­ tion of a series to be published regularly. From the perspective of halakhic as well as legal literature, it constitutes an important innovation. Hitherto, the cus­ tom of rabbinical courts was to produce the reasons for their rulings only if so requested by a litigant who wished to know the basis for the ruling. However, in the Diaspora, when rabbinical courts had no means of enforcing their decisions, and their authority rested solely on the voluntary consent of the litigants, such explanations were usually unnecessary. In most countries there was no hier­ archy of rabbinical courts - all rabbinical courts were at the same level - so that there was no possibility of appealing a decision by petitioning a higher court. The need to be apprised of the grounds for the rulings thus arose solely from schol­ arly considerations. The rabbis and judges, of course, deliberated before reaching a decision, and often composed written reports of their opinions, but these were only rarely published. Even when they were published, in the form of volumes of responsa, this was often many years after the rulings had been handed down. Overall, however, only a small fraction of rabbinical court rulings were indeed published. These rulings, therefore, while of value for scholars, were of no bene­ fit to the parties involved in the cases. With the rebirth of rabbinical courts in Israel...a major change has taken place. Rabbinical courts now have the authority to enforce their rulings. An appellate court has been established, making it possible for rulings to be referred to a higher level. Familiarity with the grounds for a given ruling thus has prac­ tical value: it enables litigants to decide whether, and on what grounds, to appeal a lower court ruling. The Rabbinical High Court of Appeal, too, must be conver­ sant with the reasons for a ruling under review if it is to clarify the laws in ques­ tion and decide correctly. Furthermore, an understanding of the legal reasoning involved allows lawyers to better handle similar cases in the future. Publication of the rulings provides them with direct access to the pertinent talmudic sources. According to the law, a rabbinical court with the authority to enforce its decisions must give the reasons for these decisions in writing (Shulhan Arukh, Hoshen Mishpat, sec. 14, par. 4, according to R. Joseph Caro and R. Moses Isserles; Caro’s Avkat Rokhel, 17, 18, 19; Noda Biyehuda on Hoshen Mishpat, 2nd ed., sec. 1). On the basis of this principle, the Chief Rabbinate directed all rabbini­ cal courts in Israel to tender their opinions in writing (Takanot Hadiyun 1943, sec. 80). As an affiliate of the Chief Rabbinate, the Rabbinical High Court of Appeal takes this directive very seriously, to the point of sending files back for revision 16 AUTHORITY, PROCESS AND METHOD

if the judicial reasoning is inadequately articulated... (see Rulings of the Rabbinical High Court of Appeal, ed. Z. Warhaftig, p. 15375).76

In addition to the inaugural volume of rulings of the Rabbinical High Court of Appeal, eleven volumes of rulings of Israel’s rabbinical courts had been published by 1960. These well-indexed77 volumes alone contain a wealth of decisions on questions of family and monetary law and on matters of vital public interest.

5. Precedent in Jewish Law - Guiding Precedent

Rulings, both those in the responsa literature and those published on a reg­ ular basis, are invaluable tools for the study of Jewish law. Although courts are not bound by earlier rulings, previous decisions shed much light on how its sources are to be approached and interpreted. The role of the judge is to hand down a true and inherently just judgment,78 to the best of his ability, accepting full responsibility for the decision he hands down. He may - indeed, he is obliged to - consult those whose knowledge is greater than his own, study the literature, and seek precedents, but the decision must be based on his own best judgment.

75 For a recent example, see Appeal 137/1977, Rabbinical Court Judgments [henceforth, RCJ], vol. 10, p. 327. On p. 331, the Rabbinical High Court declares, with regard to the majority view of the Ashdod rabbinical court cited there (case 355/1977, p. 318):

Therefore it seems that the truth is with the minority opinion that the appellant does not need a bill of divorce at all, not even lehumra [to satisfy the scrupu­ lous]; as opposed to the majority view of the district rabbinical court to the effect that a bill of divorce is necessary lehumra, because it gave no halakhic reason for its ruling, and this is unacceptable (emphasis in the original).

76 RCJ, vol. 1, ed. D. Katz and Y Glasner, p. 3; cf. the address by the Chief Rabbi of Israel, President of the Rabbinical High Court, R.I. Halevi Herzog, p. 2. 77 A combined index to the first five volumes of RCJ appeared in 1967, edited by R.D. Katz. Publication of a combined index, including an index of sources, for all rabbinical rulings to date, should be considered. 78 bSanhedrin 7a, 111b; bBaba Batra 8b; Tosafot ibid. s.v. din emet leamito ; bShabbat, 10a; bMegila 15b. PRECEDENT IN JEWISH LAW 17

In Jewish law, then, precedent guides the judge, but the judge is not obli­ gated to follow it: it is not binding. The principle is: “all agree that we do not learn the law from a previous ruling”;79 “if, say, one’s teacher ruled on a point of law, one should not determine the law accordingly, because one might be wrong about his teacher’s reasons for that particular decision, since there are many who err in their studies.”80 Thus the law must not be decided on the basis of a previous decision; previous decisions are to be used only as guidelines. The weight accorded a given precedent is influenced by the stature and authority of the court which sets it, on the one hand, and by the stature, authority, logic and halakhic insight of the judge who employs it, on the other. R. Joseph ibn Migash, in the late twelfth century, was asked whether one who “understands neither the essence of a law nor how it is derived from the Talmud” may rule on the strength of Geonic responsa, since “in their responsa, many Geonim ruled on a matter... but later they changed their minds or were criticized by others.” He replied as follows:

One who does not rely on himself, but follows the rulings of the Geonim, which are decided laws (halakhot psukot), given with succinct and clear reasoning, such a person is to be commended more than those who presume to rule on the basis of the Talmud... because there is no one in our generation whose mastery of Talmud is such as to enable him to arrive at a decision without considering Geonic opinions.81

About two hundred years later, R. Jacob Halevi Molln (Maharil) writes to R.A. Katz:

As to your remark that responsa should not be relied upon, on the contrary, they are rulings intended for implementation and therefore we leam more from them than from the works of the authorities which are not actual rulings... hence the widely-used expression “regarding the law as put into practice” . . . . And as all our masters from the post-talmudic period quote from the responsa of their pre­ decessors, should not we, who are but orphans of orphans, do likewise?82

Overdependence on precedent is a sign of weakness: as R. Joseph ibn Migash says, “there is no one in our generation whose mastery of Talmud is such as to

79 jHagiga 1:8, 7b. This dictum was spoken by R. Hanina in the name of Samuel. 80 Korban Haeida ad loc. s.v. sheein lemidin min hamaase. 81 Responsa of R. Joseph Migash , #114. On this responsum cf. Elon, op. cit., vol. 3, pp. 1181-1184; Ta-Shma, “Yetzirato Hasifrutit Shel Rabeinu Yosef Halevi Ibn Migash,” Kiryat Sefer 40 (1971), pp. 547ff. 82 Maharil, Responsa, #72; cf. Elon, op. cit., vol. 2, pp. 9 7 6 -9 7 7 . 18 AUTHORITY, PROCESS AND METHOD enable him to arrive at a decision”;83 and as the Maharil says, we are “orphans of orphans.”84 R. Abraham, Maimonides’ son, was critical of this point of view:

In my opinion a judge who decides only on the basis of written and explicit works, is weak and feeble... this is not right; these written works are indeed car­ dinal, but the judge... has to consider them with reference to the case before him, and apply the laws to similar cases, so as to arrive at conclusions regarding the case at hand on the basis of these cardinal principles. ... and the numerous inci­ dents we find in the Talmud which mention specific laws are not related gratu­ itously, or to enable judges to decide contemporary cases according to what is said there, but rather, to endow the wise, upon hearing these incidents many times, with the good judgment and analytic skill to hand down proper rulings.85

R. Judah, the son of R. Asher b. Jehiel, notes that:

Nowadays, given that we have manuals of the law [he is apparently referring to Piskei Harosh] we ought not rely on responsa. And if I find that such works and the responsa contradict each other, I decide according to the authorities who wrote the manuals, because they are later.86

To conclude, let me quote from R. Yomtov of Seville, the Ritba,87 of the thirteenth century, one of the Early Authorities, quoting his teacher R. Aaron Halevi:

[A previous ruling is binding] only for the given case, but in a different case, even though it is exactly like the first one, a judge is bound only by what he beholds with his own eyes.

6. Arguments Against Implementation of the Doctrine of Binding Precedent in Jewish Law

There are three main halakhic objections to the doctrine of binding precedent. i. Apprehension that judges will err by comparing unlike cases. ii. Judges are not bound by earlier rulings, but are independent and may rule differently.

83 See text above at note 81. 84 See above. 85 R. Abraham, son of Maimonides, Responsa , #97. Cf. Elon, op. cit., vol. 2., p. 968. 86 Zikhron Yehuda #15. 87 Ritba on Baba Batra 130b; also cited in Hidushei Haran on Baba Batra ad loc., and Nimukei Yosef on Alfasi ad loc.; cf. Elon, op. cit., vol. 2, p. 983. PRECEDENT IN JEWISH LAW 19

iii. Judges are obliged to decide the cases before them and cannot simply reproduce decisions handed down by other judges. Let us examine each argument and its basis in Jewish law.

i. Apprehension About Error

Analogy is an important tool that tremendously enriches both legal thought in general and Jewish law in particular. “Since the Torah is brief in one place and expansive at another,”88 it stimulates legal thought and trains the judge to find innovative solutions to the novel problems that are constantly surfacing. “It is well known that countless new cases arise with the passage of time, and they cannot all be committed to writing along with explication of the relevant laws.”89 In rendering judicial decisions, it is often the case that analogy is used; in civil law, liability can be established on the basis of judicial reasoning.90 The Talmud notes: “In all legal matters we compare things to each other.”91 This is explained by theYad Rama as follows:

In all legal matters (except the laws of forbidden food) we compare things, because not all the laws and all the particulars of prohibitions are specified explic­ itly. If a matter arises which is not written explicitly, we have to compare it with another which is similar from among those which explicitly appear in the Talmud. And we see that the Sages of the Gemara in all their teaching and in ruling on cases, learned one thing from another and compared one thing with another.92

R. Solomon b. Simon Duran expressed this idea in verse:

For the wise rely on that elsewhere spoken recognized by all, and handed down as well, to enlighten both simpleton and scholar.93

But this penchant for analogy can have a negative impact on the mental acu­ ity required to distinguish between different facts and laws, encouraging error, banality and vapidity. “R. Joshua b. Levi compares one thing with another, but

88 jRosh Hashana 3:5. 89 Zikhron Yehuda #79. 90 Tosafot , Baba Kama 4b s.v. veeidim zomemin ; ibid. 2a s.v. velo ze vaze. 91 bBaba Batra 130b. 92 Yad Rama ad loc. 93 Rashbash, Responsa , #1. 20 AUTHORITY, PROCESS AND METHOD

R. Eliezer does not.”94 “Should we act just because we compare the things?”95 Great care must be taken in comparing one case to another, given the ever­ present possibility of mistaken analogy. The Gemara censures the judge who “has a case brought before him and decides the law by comparing one thing to another, yet he has a teacher and does not consult him.”96 Every case must be judged independently; hence the judge who is inflexible, who is determined to apply a given law and searches for precedents to that end, deserves censure. The Tosefta remarks in the same spirit, “we do not question a ruling on the basis of another ruling issued by one who is fixated on a precedent.”97 Maimonides cites this principle as law:

Any judge who has a case brought before him and begins by comparing it with cases in which rulings have already been handed down, and, though there is an authority wiser than himself in his country, does not consult him, such a judge is one of the malefactors who administer justice contemptibly.98

The Shulhan Arukh states:

One who has a case brought before him and compares it to another case which he ruled on previously, and, though there is in the city one wiser than himself, does not consult him, such a judge is one of the evil who administer justice con­ temptibly.99

Although in the Shulhan Arukh the phrase used is ‘which he ruled on pre­ viously,’ that is, it refers to a judge ruling in accordance with a precedent he himself set in the past, Maimonides’ version clearly applies to any precedent, whether set by the judge in question or by another court. This is clear from the words of the Gemara quoted above “and decides the law by comparing one thing to another.”100 The judge decides the law on the basis of another case, not necessarily a judgment he handed down himself.

94 bBerakhot 19a. 95 bGitin 19a. 96 bJebamot 109b. 97 Tosefta Kilayim 5:4, cf. commentary of Rash ad loc .; cf. S. Lieberman, Tosefta Kifshuta, Seder Zeràim, part 2, p. 651. 98 Maimonides, Code , Laws Concerning the Sanhedrin 20:8. 99 Shulhan Arukh, Hoshen Mishpat 10:2; this also appears in the Tur, ibid., sec. 3, with slight changes in the wording. 100 See text above at note 96. PRECEDENT IN JEWISH LAW 21

Ketzot Hahoshen101 tries 102 103 to limit this rule to cases in which the judge does not consult anyone at all; once he has consulted the greatest authority in his city, however, he need not confer with him again regarding a similar case. Ketzot Hahoshen is apparently following the Rashbam: “He should act all his days according to this and he need not ask about each particular case which comes before him.”102,103 But in his BayitHadash, R. Joel Sirkis differs: “He must con­ fer with his teacher on every case.”104 106 105 The Prisha explains this view as follows: “He has to consult his teacher repeatedly, lest he err about the second case being completely analogous to the first.”105,106 The interpretations of R. Joel Sirkis and the Prisha are supported by Rashi: “The judge decides the law: he knows the law, but it does not really cover the case at hand, and he compares one thing with another and does not consult his teacher.”107 Since the principal reason for condemning the judge who “sticks like glue to a rule” is the possibility of his making a false analogy, and each case must be treated as one that is entirely new, if it is incumbent upon him to consult his teacher or a local authority greater than himself, this obligation obtains regarding each and every case he adjudicates.108 Generally the facts, the contested issues, and the financial impli­ cations differ from case to case, though they may be similar. Any one of these differences may influence the outcome of the case, thus any comparison between cases entails intense scrutiny of the details involved so that relevant differences do not escape notice. The danger inherent in facile analogies is clear. There are many cases in the Gemara in which attempts to use a previous ruling as the basis for deciding an ongoing case fail when, upon examination, the initial judgments are seen to follow from some specific detail which affected the outcome of the case. Let us examine a few such cases.

101 Ketzot Hahoshen on Hoshen Mishpat, sec. 14, par. 1. 102 Rashbam, Baba Batra 130b s.v. yelekh veyaase maase. 103 Nimukei Yosef ad loc. concurs. 104 Bayit Hadash commentary on Tur, Hoshen Mishpat, sec. 10, par. 3. 105 Prisha commentary on the Turad loc. 106 Semah on Hoshen Mishpat ad loc. agrees, par. 4. 107 Rashi, Jebamot 109b s.v. ugemar halakha. 108 Thus Haim Cohn’s conclusion that Jewish law rejects the system of binding precedent is indeed supported by the example in Jebamot 109b. Haim Cohn, “A1 Hatokim Atzmam Lidvar Halakha (the problem of precedent in Jewish law),” Mishpat Vekalkala 3 (1957), pp. 139ff. See note 41 above. Menahem Elon, on the other hand, in attempting to explicate the rejection of binding precedent, ignores the matter of “sticking like glue to a rule,” cf.op. cit., vol. 2, pp. 981ff. 2 2 AUTHORITY, PROCESS AND METHOD

The first example is the case of the squatter who resides on the vacant property of another without his permission. There was an attempt to argue that the squatter must pay rent, on the basis of the decision handed down by R. Nahman in the case of one who built a mansion on land belonging to orphans. R. Nahman confiscated the mansion in lieu of rent.109 But on closer examination of the alleged precedent it was found that Carmanians had been living on the land previously and had been paying a token sum as rent. Thus, although the land was not a real rental property, since it had generated only a nominal sum, it had the legal status of commercial property. The squatter was therefore obliged to pay for its use. The mansion was confiscated because the court instructed the trespasser to reach an agreement with the orphans and he failed to do so. Another example is the case of one who planted trees on the property of another without the owner’s permission. The Talmud deduced the opinion of Rab, which was not stated explicitly, from an earlier case,110 in which Rab told the owner to have the planting assessed and pay its value to the planter. The owner refused, saying that he did not want the trees on his property to begin with. Rab again told him to have it assessed, assuring him he had the upper hand [i.e., that the owner would pay the equivalent of the value of the planter’s investment or of the improvement of the property, whichever was lower]. The owner refused, insisting he wanted no planting on his property. Later, however, he built a fence around the plants and tended them. Rab told him, “By your act you declare that you do want the improvement. If so, have it assessed and pay the planter, but now, the planter has the upper hand.”111 Clarification of factual differences is an integral part of determining the law. Imposition of an obligation to follow precedent would lull the judge into routinely deciding cases on the basis of authoritative recommendations. R. Isaiah b. Israel Basan112 does not mince words in excoriating blind reliance on precedent:

All these judges who stick like glue to a particular responsum, without examin­ ing the roots of the matter, are not judges at all. The Ribash himself, in section 7, in replying to someone who wanted to rely on one of the Ribash’s rulings in

109 bBaba Kama 21a, Tosafot ad loc. s.v. veyahavei. 110 bBaba Metzia 101a; Shulhan Arukh, Hoshen Mishpat, sec. 375, pars. 1, 3. 111 See Elon, op. cit., vol. 2, pp. 960ff. Examples of distinguishing a precedent abound. 112 Eighteenth-century Italian scholar and teacher of R. Moses Haim Luzzatto. PRECEDENT IN JEWISH LAW 23

Barcelona, answered that it should not be used as a precedent because he might have been inclined to follow the Rashba of blessed memory on the matter, since Barcelona was under the latter’s jurisdiction. And he may well have had his own reasons for deciding as he did in that particular case - perhaps due to an exi­ gency. And as the Sages said,113 one must not learn from a court action unless it is explicitly stated that the ruling should be implemented. Take heed of his words; they are as wise as their utterer and pleasing to men of understanding. Not everyone has the privilege of learning from the responsa of the great, since often their points are interdependent,114 as it was stated, just as the fisherman gathers and keeps both the large and the small fish.115 Know that the law varies with the circumstances of the case.116

I need add nothing to these persuasive arguments.

ii. Judicial Independence

The judge is not bound to follow decisions of other courts or even his own previous decisions. It is incumbent upon him to master and utilize the sources, and to learn from his teachers and the great halakhic authorities, but as a judge, he is independent - his decisions, and the responsibility for them, are his alone. The Talmud reports:

Rava said to R. Papa and to R. Huna b. R. Joshua: When one of my rulings is brought before you and you find something objectionable in it, do not tear it up before you come to me. If I have good reasons I will tell you; if not, I will revise my opinion. After my death do not tear it up, but do not rely on it either. Do not tear it up because if I were there perhaps I could have explained it to you; do not rely on it because a judge must rule solely on the basis of what his eyes behold.117

Commenting on this passage, the Early Authorities explain the phrase “do not rely on it” as follows: “Do not rely on it in another case, even if it is highly similar”;118 “Because even if we decide a case which is similar, the judge must rely only on what he sees” ;119 “If another case is brought before him, even if it

113 bBaba Batra 130b. 114 Basically, obiter dicta. 115 bBaba Kama 41b. 116 Quoted in R. Isaac Lampronti’s Pahad Yitzhak (Jerusalem: 1962), part 1, p. 325. 117 bBaba Batra 130b-131a. 118 Nimukei Yosef on Alfasi ad loc. 119 Ritba ad loc ., quoting his teacher R. Aaron Halevi. 24 AUTHORITY, PROCESS AND METHOD is exactly like the first one, he may rule as he sees fit.”120 The Yad Rama con­ cludes, “therefore the judges may decide on that case as they see fit.”121 Nachmanides, in a responsum to the author ofSefer Haterumot122 regard­ ing a controversy between R. Yehudai Gaon and R. Isaac Alfasi, answered: “Though we may be in awe of the wisdom of the great master, there is no par­ tiality in the law.” R. Asher b. Jehiel puts it bluntly:

If the judge does not agree with their opinion and he brings acceptable proof for his contemporaries, then Jephthah in his generation is like Samuel in his; there is no authority but the judge who is of these days, and he may contradict them. Because any point not explained in the Talmud edited by R. Ashi and Rabina can be contradicted and reconstructed, and even the opinions of the Geonim can be disputed.123

In a responsum addressing the question of whether an abusive husband, who starves his wife to the point where she hates her life, should be forced to grant her a divorce, R. Simon b. Tzemah Duran says:

Though there are rulings of the Later Authorities, of blessed memory, to the effect that a man can never be compelled to divorce his wife, we are no reed-cut­ ters [ignoramuses] either, and where it is a matter of reason, the judge must rule solely on the basis of what his eyes behold.124

Nor is the judge bound by his own former rulings on similar or even iden­ tical cases. As Rabbenu Gershom states: “A judge has to rely solely on what his eyes behold, that is, I decided according to what I thought fit at the time, at another time perhaps I would have regarded the matter differently.”125 That it is conceivable for the same judge to rule differently on the same issue at different times is supported by the following example. The Talmud considers a case in which, after having left the court, the litigants lost the writ of judgment, and were unable to agree as to the substance of the ruling that had been handed down. The Talmud states that in such a case the judge is not

120 Ran ad loc. 121 Yad Rama ad loc. 122 R. Samuel b. R. Isaac Hasardi, Sefer Hatrumot, ch. 16, part 3; also in RCJ, vol. 2, p. 72. 123 Piskei Harosh, Sanhedrin, ch. 4, sec. 6. See Haim Cohn, op. cit. (note 108 above), p. 136; Elon, op. cit., vol. 2., p. 985. 124 Tashbetz, part 2, sec. 8. 125 Rabbenu Gershom, Baba Batra 131a s.v. sheein lo. PRECEDENT IN JEWISH LAW 25

to be trusted to say, “I ruled for this one and against the other.” The Gemara asks: “Should he rejudge the matter?”126 Rashi explains: “Either the same judge or another should decide in accordance with their claims.”127 The response in the Gemara is that this will not resolve cases where the decision is a matter of judicial discretion. Rashi explains:

The outcome in such cases does not depend on reasoning but only on the mouth128 of the judge. Take, for example, the case mentioned in bKetubot in which a man bequeathed his estate to Tobiah.129 Two persons by this name appeared, both relatives and neighbors of the deceased. Such a case is decided by judicial discretion - the judge’s intuition determines his choice. In effect he declares, “I think this man was a closer friend of the deceased,” and awards him the estate. And since he has thus decided, even if he wishes to change his mind, he desists. Thus a new trial would not solve the problem, because this time he might decide in favor of the other party.130

Rabbenu Tam raises an objection: “If the outcome depends on the judge’s discretion, as Rashi says, why doesn’t he agree that rejudging the matter would serve its purpose, since presumably the judge would not change his line of reasoning?”131 Apparently, Rashi thinks that a judge may change his attitude even with respect to a line of reasoning. As the Rashbam puts it, “The judge is to rule solely on the basis of what he sees with his own eyes. This applies to matters that depend on reasoning: he must decide only on the basis of what he sees.”132 We can conclude that judges are not bound by deci­ sions of other courts on similar cases, or by precedents they themselves have set. Each case to be tried stands alone and must be decided on its own merits. The following biblical exegesis is from Šifre:

And I charged your judges at that time, saying: “Hear the arguments between your brethren, and judge righteously between a man and his brother.”133 And I told them: Be cautious in judging. If a case is brought before you two or three

126 bKidushin 74a. 127 Rashi ad loc. s.v. venihader venidaynihu. 128 In Tosafot ad loc. s.v. beshuda dedayani , Rashi’s comment is quoted as follows: “everything according to what the judge beholds.” This version is more likely. 129 bKetubot 88b. 130 Rashi on bKidushin 74a s.v. beshuda dedayani. 131 Tosafot ad loc. s.v. shuda dedayani. 132 Rashbam’s commentary, Baba Batra 130b s.v. sheein lo (at the end of the page). 133 Deut. 1:16. 26 AUTHORITY, PROCESS AND METHOD

times, do not say: This case had been brought before me and I know it inside out, but deliberate; be cautious in judging.134,135

Elsewhere,134 1361 135 used this principle, that every judge must try each case as if it were entirely new, to explain a query regarding a problem in bSanhedrin:

There was a man they used to call “the mouse lying on money.” Before he died, he mentioned several people to whom he owed money. After his death the credi­ tors summoned his heirs before R. Ishmael b. R. Jose. He told them: There is a rule that states that a man is inclined to pretend to be poorer than he really is. (Rashi explains that the claim that one has debts is made to avoid the appearance of wealth and thereby ward off the evil eye.137) But this applies only in life, not after death. The heirs paid half, and were sued for the other half. The creditors appeared before R. Hiya, who ruled: Just as a man is likely to pretend to be poorer than he really is for his own sake, so he is likely to act for the sake of his chil­ dren. They asked: Must we return the half already paid to us? (Rashi).138 He replied: The Elder has already handed down his ruling.139

Now this report seems problematic. If a ruling had already been handed down by ‘the Elder’, that is, if the court had already ruled, given that such a ruling is final, it would not be necessary to litigate at all, as the rest of the amount would have been collectible on the strength of the first ruling. My understanding is that we are dealing with two creditors here, one of whom brought his suit before R. Ishmael b. R. Jose, won the case and recovered the money coming to him from the heirs, and a second creditor, who brought his case to R. Hiya. The latter did not take account of the precedent that had been set by R. Ishmael b. R. Jose’s decision, and ruled differently on what was essentially the same case, rejecting the claim. On the basis of this second decision, the heirs sought to reverse the ruling of R. Ishmael b. R. Jose and recover the sum they had paid out. R. Hiya ruled as follows: “The Elder has already given his ruling” - his decision is final because this is not a case of an erroneous judgment, but “in a case like this, in which there is no explicit law,

134 See Mishnah Avot 1:1: “They [the men of the Great Assembly] said... be cau­ tious in judging.” Cf. R. Obadiah of Bertinoro’s commentary ad loc. s.v. hevu metunim badin. 135 Šifre Deut., Dvarim, sec. 16. 136 See Z. Warhaftig, Mimizrakh Noam Al Masekhet Sanhedrin, p. 39. 137 Rashi on bSanhedrin 29b s.v. adam asui and shelo lehashbia. 138 Rashi ád loc. s.v. nizol venihader. 139 bSanhedrin 29b. PRECEDENT IN JEWISH LAW 27 the judge must rule solely on the basis of what his eyes behold - and what he decides is final.”140 For this reason I cannot agree with the conclusion of theOrah Hamishpat:

If a case is brought before him which is identical with a case he has tried in the past... the very same situation, and he knows that he gave his ruling for a certain reason... but he cannot now recall that rationale... he does not have to probe the case but may rely on his first decision. There is mishnaic support for this: If the anointed priest made an erroneous decision for himself unwittingly and acted accordingly, transgressing unwittingly, he must bring a bullock as a sin offering. If he made the wrong decision unwittingly but acted deliberately, or decided erro­ neously deliberately but acted unwittingly, he is exempt from a sin offering.141 The Talmud objects: If he decided unwittingly and acted unwittingly, the Mishnah is redundant. Abbaye said: this matter is like the case of one who made a decision and forgot the reasons for it. When he acted in accordance with it, he said to him­ self: I am acting on the basis of my earlier ruling. The Mishnah teaches us that this case should not be compared to acting deliberately. It is clear that in relying on his earlier decision he should not be regarded as an intentional transgressor. If he should have waited until he remembered the reason for his earlier decision and did not do so but acted hastily, why is he regarded as an unwitting transgressor and not an intentional transgressor? We can infer that there is no duty to wait.142

But the Orah Hamishpat 9s conclusion contradicts the passage from Šifre quoted above,143 and the evidence it brings in support of this conclusion is very shaky, since the passages in question do not refer to cases that involve two actions, but rather, to an erroneous action that is repeated without having been corrected. For a decision holds even if the reasons for it are not given; therefore forgetting the reason, but handing down the decision nonetheless, is not a transgression. In short, the judge must be independent and must rule afresh on every case that comes before him, as opposed to mechanically following precedent, whether his own or that of other judges. It follows that in Jewish law, prece­ dent is intended only to guide future judges, not to bind them. The doctrine of binding precedent has no place in Jewish law.

140 Rabbenu Hananel ad loc. 141 Mishnah Horayot 6:2. 142 R.Y. Onalin, Orah Mishpat. R. Onalin was head of the rabbinical court of Tiktin and Schedlitz. Printed in 1908, this book was drawn to my attention by the late R. Efraim Zeev Garbuz. 143 See text above at note 135. 28 AUTHORITY, PROCESS AND METHOD iii. The Judge’s Duty to Hand Down a Ruling

The judge is obligated to render judgment. “Ye shall not be afraid of the face of any man,” says the Torah.144 R. Hanin tells us, “do not withhold your say because of any man.”145 Rashi explains: “The judge should not be afraid and withhold himself from handing down a decision.”146 That judges are required to render decisions is one of the 248 positive precepts.147 The duty to render a decision falls on the judge before whom the case is brought. Once the dispute is presented to him, he cannot relinquish the case.148 The obligation to render judgment is a personal duty - the judge himself must decide, and the decision cannot be rendered by anyone else. R. Nahman said to Rava: “Did I not say to you that when I am sitting in judgment, you should not make any suggestions to me?”149 From the verse “Thou shalt not follow a multitude to do evil,”150 we learn that a judge must not follow the opinion of another judge, even one greater than himself, but every judge must decide the case according to his own understanding. This rule applies to all the great authorities, as the Tosefta states: “You should not say at the time of judgment: a slave may be content to be like his master (so too the individual should heed the opinion of the multitude151 153), 152 but speak your mind.”152,153 The judge must be independent in reaching his decision. Over-reliance on precedent, excessive zeal in searching for pertinent references in the litera­ ture, and of course the need to rule in accordance with precedent - all these factors hinder independent judgment. For this reason, in capital cases, when the judgment is handed down, the decisions of the junior judges are given

144 Deut. 1:17. 145 bSanhedrin 6b. This is a play on the words of Prov. 10:5, taguru and taagru (bSanhedrin 7a). 146 Rashi on Sanhedrin 6b s.v. deein lo ledayan. 147 Rashi on Ketubot 106a s.v. hai ase. Similarly, following Onkelos, Rashi explains that the words of Exod. 18:22 (veshaftu et haam bekhol et) are in the imperative, see ibid. s.v. veshaftu. 148 bSanhedrin 6b. There is a special exception - suits suspected of being fraudulent, which judges may forgo (see Maimonides, Code, Laws Concerning the Sanhedrin 24:3-4); however, this exception is inapplicable to the present discussion. 149 bBaba Kama 96b. 150 Exod. 23:2. 151 Minhat Bikurim commentary on Tosefta, Sanhedrin 3:4 s.v. dayo leeved. 152 Tosefta, Sanhedrin 3:4. 153 See Warhaftig, op. cit., pp. 50-52. PRECEDENT IN JEWISH LAW 29 first.154 The Jerusalem Talmud brings the following exegesis: “Do not follow a multitude... Rabbi says: the spelling of ‘multitude’ is the same as that of ‘teacher’ to indicate that you must not give your opinion after your teacher, but before him.”155 This is intended to keep the junior judge from being influ­ enced by the senior, which would deter independence of thought and deci­ sion. To be sure, according to the Mishnah,156 only capital cases begin with the junior judges, and in civil cases, the senior judge renders his decision first, but I have demonstrated elsewhere157 that on the correct reading of this Mishnah, judgment in cases of civil law can commence with the decision of either the senior or the junior judge, as is deemed desirable. Responsibility for the decision rests with the judge and is not shared with anyone else. The judge may, and indeed, ought, consult his teachers, and those of greater authority in his own town and throughout the country, but the decision and responsibility for the decision are his alone. The judge may, however, increase the size of the bench trying a given case, and thereby divide responsibility for it. “When a case was submitted to Rav Huna, he used to gather ten scholars in order that, as he put it, ‘each might carry a chip of the beam.’”158 But only the judges trying the case are responsible. The Rashbash concludes a responsum to a court as follows: “And what I have written is sufficient, though I have misgivings about this license, but the yoke is on you, who can see more where you are than I can hear from here, and I have saved my soul.”159 Even if it brings precedents for its decision, a court is not permitted to transfer responsibility, or even partial responsibility, to either the respondent or any authority he cites. Resh Lakish explains the verse: “And judge righteously”160 as “Consider rightly all the aspects of the case and afterwards decide.”161 The Tur and the

154 Mishnah Sanhedrin 4:2. 155 jSanhedrin 4:6. 156 Mishnah Sanhedrin, loc. cit. 157 Warhaftig, op. cit., pp. 49-50. 158 bSanhedrin 7b; Rashi ad loc. s.v. denimtein explains that “we shall be burdened by a chip from the beam, that is, if we err, the offence will be divided among us all and my burden will be lightened”. Compare the saying of R. Joshua b. Levi ad loc.: “Ten people who sit in judgment - the yoke [Rashi explains that this means ‘the punishment for error’] is on all.” 159 Rashbash, Responsa, #519. 160 Deut. 1:16. 161 bSanhedrin 7b. 30 AUTHORITY, PROCESS AND METHOD

Shulhan Arukh present this dictum as the law: “[The judge must] consider righteously in his heart and afterwards decide.”162'163 The judge must arrive at and justify the decision himself - “in his heart” - and not rule as another court did. We have seen that, for a variety of reasons, in Jewish law precedent serves as a guide, but is not binding. Against this background I will now briefly sur­ vey the relationship between Israel’s Rabbinical High Court of Appeal and district rabbinical courts.

7. Precedent and the Relationship Between Israel’s Rabbinical High Court of Appeal and District Rabbinical Courts

According to Jewish law, if they find its opinion unacceptable, courts are not bound to rule in accordance with any established authority, not even the decisions of a higher court, such as the Rabbinical High Court of Appeal. Secular Israeli courts, on the other hand, often accede to precedent: on more than one occasion, district courts have questioned the validity of decisions of the Supreme Court, but have considered themselves bound to follow it because of the doctrine of binding precedent.164 What happens when Israel’s Rabbinical High Court of Appeal upholds an appeal against a ruling handed down by a district rabbinical court and returns the case to the district rabbinical court for retrial? There are cases where the court concedes the correctness of the decision of the appellate court, accepts it, and hears the case again. But there are also cases of courts that, convinced of the correctness of their decision as opposed to that of the appellate court, continue to firmly uphold their decisions and to maintain that the Rabbinical High Court of Appeal is mistaken. They do not question its authority or object on the grounds that courts are not subject to criticism, because an implicit condition of their jurisdiction is that litigants have the right to appeal their rulings; it is also one of the conditions they agree to in accepting their appointment as judges. There are thus no grounds for viewing this stance as an indication of contempt for the appellate court. These district courts argue

162 Tur, Hoshen Mishpat, sec. 17, par. 10. 163 Shulhan Arukh Hoshen Mishpat, sec. 17, par. 7. 164 Civil Case 778-876/50 A. B. v. M. B., District Court Reports, vol. 3, pp. 272-273; Application 1163/60 (Civil Case 1757/53) Shershevsky v. Shershevsky, District Court Reports 24, p. 183. PRECEDENT IN JEWISH LAW 31

only that an appellate court which rejects a lower court decision should retry the case itself. They argue that retrial is not the responsibility of the lower court, which should not, and indeed, has no mandate to decide against its own convictions, if it has not been persuaded that its ruling was indeed wrong. In practice, the solution in such cases is usually for the appellate court to transfer the case to a different district court for retrial.165 Thus, for exam­ ple, the district rabbinical court in Haifa ruled that a husband be compelled to grant his wife a divorce.166 Upon appeal, the appellate court overturned the ruling and instructed the district court to reopen the case in order to clarify the husband’s claim that his wife had been involved with someone else even before their marriage. The presiding justice of the Haifa court refused to review the case, because in his opinion all the evidence had been carefully considered, and the ruling ought to stand as handed down. The case was transferred to the district rabbinical court in Tel Aviv-Jaffa. One case, concerning custody of a child, raised more serious problems, when the lower court167 refused to transfer it to a different court. In this case, the Rabbinical High Court of Appeal intervened - before the decision of the district court had been handed down - when one of the parties appealed a decision of the district court concerning the deposing of witnesses abroad. While the Rabbinical High Court of Appeal rejected the appeal, it neverthe­ less ruled that the court should transfer the case to a different court. The dis­ trict court argued that a case under adjudication should not be transferred, and that the court hearing a case has a duty to pass judgment on it. The matter reached the Supreme Court,168 which instructed the district rabbinical court in Jerusalem to heed the Rabbinical High Court of Appeal. The Supreme Court did not address the halakhic approach to the question of the extent to which decisions of one court are binding on other courts. It simply ruled that a

165 E.g., Files 37/3692, 39/1401, Haifa District Rabbinical Court. 166 File 34/202, Haifa District Rabbinical Court. 167 File 1969/2312, Jerusalem District Rabbinical Court. 168 High Court of Justice 35/72, Kalir v. Jerusalem District Rabbinical Court and Kalir, P.D. 26(1), p. 757. 32 AUTHORITY, PROCESS AND METHOD decision of the Rabbinical High Court of Appeal is binding even if based on a mistake of law, as long as it does not exceed its authority.169 Such exceptional cases highlight the judicial independence of the rabbini­ cal courts.

169 Ibid. p. 759, “gimel-dalet.” It is noteworthy that at the end of its ruling the Supreme Court states:

There is no need to point out that given the existing complex hierarchy of legal institutions, it is incumbent on the court of the first instance to heed the decisions of the appellate division. The debate which the first respon­ dent (the Jerusalem District Rabbinical Court) entered into with the appel­ late institution above it is unseemly, and it ought not be the case that such a matter should require a petition to this court to compel the first respon­ dent to comply with the ruling of its appellate court (pp. 759-760).

The Supreme Court ordered the judges of the Jerusalem District Rabbinical court to pay the court costs of the appeal to the Supreme Court.